Unconventional wisdom on an apparent win for secularists in Israel's latest synagogue-state controversy

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This time Tzippi Livni got it exactly right. "Davka [Precisely] because I am not a
religious person, I want to preserve something in Tel Aviv that symbolizes
the Chag [holy days]; something in the public square that does not coerce anyone to do
anything or refrain from doing anything in the privacy of his home," she
said in a recent discussion of the "Leaven Law".

The Leaven Law, which forbids the public display of leavened
products for the purpose of sale during Passover, benefits the secular Jewish
state not religious citizens. As an instrument of enforcing compliance with
Halacha, the law is totally ineffective, and would be counterproductive if
it were effective: Many Israeli Jews  70% of whom do not eat leaven on
Passover, according to a recent Yediot Aharonot poll  would davka do so if the state prohibited it.

Nor is the law for the protection of the sensitivities of religious Jews. There is no prohibition against seeing leaven in someone else's possession. What does  or should  pain religious Jews is that other Jews feel no connection to the performance of mitzvos (religious duties), not that they are witness to that fact.

Rather the law serves to remind Israeli Jews that they are members of a
people with a very long history and distinctive practices that set it apart from all other peoples of the world. Strengthening national identity, as many secular Israelis have come to recognize, is the key to Israel's long-term survival. And symbols that have their origin in traditional religious practice  e.g., bans on the sale of pork, Shabbat closure laws, the closing of restaurants on Tisha B'Av  play a role in instilling Jewish national identity.

The Palestinians strategy is predicated on draining our will. They have long regarded the diminishing connection of the Jews of Israel to their past and the Land as their Achilles tendon. That is why Arafat tried so hard at Camp David to get the citizens of the secular Jewish state to admit that the Temple Mount is far more important to the Palestinians than to them, for by doing so he would have succeeded in severing one more tie between the Jews of Israel and their history.

A story from the memoirs of Palestinian parliamentarian Selah Temari
encapsulates Palestinian thinking on this point. While imprisoned in an
Israeli jail for security offenses, Temari came to the conclusion that
Israel was far too powerful to ever destroy. He even began to study Jewish history to gain insight into the perseverance of the Jewish people in the face of so much adversity.

Then one night he was looking through the bars of his cell, and he saw his Jewish jailer eating a pita. "How could you be eating bread?" he asked. "Don't you know it is Passover." The jailer replied," Do you really expect me not to eat bread because of something that happened 3,300 years ago?"

That night, records Temari, he twisted and turned all night. By the morning, he reached the conclusion that the Palestinians could expel the Jews. A people that had lost its sense of connection to its past and to the Land could be defeated.

Judge Tamar Bar-Asher Tsabon, who ruled two weeks ago that the "Leaven Law" does not apply to restaurants and supermarkets, but only to
displays of leaven that can be seen from the public thoroughfare, all but invited the Knesset to rewrite the statute. Meir Shetreet's statement in this week's cabinet meeting that there is no room for further legislation because the court has spoken is pure ignorance. Judge Tsaban did not presume to say what the law should be or question the power of the Knesset to amend it.

Her decision was a narrow, technical one that turned entirely on the
interpretation of one word  b'pumbi (in public)  in the statute. Her opinion had nothing in common with that of Court President Aharon Barak four years ago striking down a longstanding Knesset statute empowering municipalities to ban the sale of pork within their borders. In that case, Barak created out of whole cloth a "right" to easy access to pork products.

Second, Judge Tsaban did not suggest that the law in question could not be enforced because it has its source in traditional Jewish religious practice. She did not follow the path of Justice Barak in the Mealreal case, in which he struck down a 50-year-old administrative ban on the import of non-kosher meat on the grounds that Israel is not a "theocracy."

In Barak's eyes, any law that has an obvious source in religious practice is inherently suspect, even if enacted by a democratically elected, secular Knesset. Banning the sale of whale meat on ecological grounds is permissible; banning the sale of pork out of respect to Jewish tradition is not.

Finally, she did not seek to uproot the legislative intent root and branch, as the Supreme Court did when it allowed Kibbutz Mizra to restyle itself as an agricultural research institute, and under that guise to continue the commercial production and sale of pork products, thereby circumventing a Knesset statute against raising pigs.

By leaving the door open for the Knesset to amend the "Leaven Law" by simply erasing a single word, or by substituting the words "in a public place (b'makom tziburi)" for the word "in public," Judge Tsaban pointed the way for the Knesset to reinforce Jewish identity in Israel.

Some might argue that such symbolic statements have no impact. My own life, however, gives me a different perspective.

I grew up in a highly identified but non-observant Jewish home. Friday night was always a special meal  attendance was mandatory, attire semi-formal, the Sabbath candles lit, and Kiddish (wine sacrament) recited. The food might not have been kosher, and the candles may have been lit after Sabbath began in violation of Jewish law, but there was a subliminal message: Being Jewish is a privilege, and like all privileges it imposes obligations.

But for that Sabbath table, I doubt that either I or three of my brothers who also became religious would have ever been prompted to inquire more deeply into what it means to be Jewish. That's why Tzippi Livni is right to insist on the educative power of certain symbols.

At no time of the year more than Passover are we surrounded by so many symbols whose meaning is engrained in the collective conscious of the Jewish people.

JWR contributor Jonathan Rosenblum is founder of Jewish Media Resources and a widely-read columnist for the Jerusalem Post's domestic and international editions and for the Hebrew daily Maariv. He is also a respected commentator on Israeli politics, society, culture and the Israeli legal system, who speaks frequently on these topics in the United States, Europe, and Israel. His articles appear regularly in numerous Jewish periodicals in the United States and Israel. Rosenblum is the author of seven biographies of major modern Jewish figures. He is a graduate of the University of Chicago and Yale Law School. Rosenblum lives in Jerusalem with his wife and eight children.